Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2035 OF 2012
EXGUNNER VIRENDER PRASAD ...APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. .... RESPONDENT(S)
J U D G M E N T
1. The present appeal takes an exception to the Judgment
and Order passed by the Armed Forces Tribunal (hereinafter
referred to as “AFT”) in T.A.No.284 of 2011 whereby, the
appeal of the present appellant against the order of Court
Martial dated 21.08.2004 was dismissed.
2. The brief facts of the present matter are as follows:
The present appellant was enrolled in Signals Corps
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2020.03.18
16:11:04 IST
Reason:
and was posted to HQ & Radar Battery of 20 Surveillance
and target acquisition regiment since 01.10.2002. The
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appellant was deployed at Peer Badeshwar Radar Post and
reported to the post on 12.05.2003. The deceased Gunner
Sushil Kumar was of the same unit i.e. 20 Surveillance and
target acquisition regiment and was working as Radar
Operator and was stated to be on good terms with the
appellant. On the date of incident i.e. 30.06.2003, the present
appellant shot the deceased GunnerSushil Kumar, while, in
a state of sleep.
The appellant contended that he shot the deceased in a
delusion of a militant attack, wherein he was firing in
retaliation. According to the appellant, he had no control over
his senses. In the said incident, the appellant fired a
complete magazine of rifle ammunition, which resultantly
caused the death of the deceased. The appellant thereafter,
came out of his tent and surrendered himself to his Senior
Authorities and confessed his guilt. Thereafter, investigation
was carried out and police registered the case and submitted
a challan before the Chief Judicial Magistrate, Rajouri.
However, on the request of the Army Authorities, the challan
and the appellant along with all the seized items was handed
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over to Army Authorities for trial. The appellant was charged
under Section 69 of the Army Act for committing a civil
offence of murder, contrary to Section 302 of the Ranbir
Penal Code. A Court Martial was conducted and in all 15
witnesses including a Psychiatrist was examined. In the
Summary General Court Martial, the appellant was found to
be guilty of murder and was sentenced to life imprisonment
and was dismissed from service.
Thereafter, the appellant challenged the said Judgment
and Order of conviction passed by the Court Martial, before
the Ministry of Defence and the Chief of Army Staff by filing
petition under Sections 164(2) and 165 of Army Act. The
same was dismissed by the Union of India vide order dated
22.05.2007. Thereafter, the appellant preferred a writ petition
in Delhi High Court, which was subsequently transferred to
the AFT on its formation. The AFT, dismissed the said appeal
filed by the present appellant vide the impugned order.
Hence, the present appeal.
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3. We have heard Mr.B.K.Pal, Ld. Counsel for the appellant
and Mr. Vikramjit Banerjee, Ld. Additional Solicitor General,
for Union of India.
4. We have perused the material placed on record. Upon
perusal of the judgment and order of conviction passed by
the Court Martial and confirmed by the AFT, we find no
reason to interfere with the findings of fact recorded by the
Court Martial as confirmed by the AFT thereby, holding, that
the appellant was liable to be convicted for the offence
punishable under Section 69 of the Army Act for committing
a civil offence of murder.
5. However, insofar as the sentence is concerned, we find,
that the case of the appellant deserves to be considered.
6. This Court in the case of Santa Singh vs. The State of
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Punjab has observed thus:
“The reason is that a proper sentence is the amalgam
of many factors such as the nature of the offence, the
circumstances — extenuating or aggravating — of the
offence, the prior criminal record, if any, of the
offender, the age of the offender, the record of the
offender as to employment, the background of the
offender with reference to education, home life,
sobriety and social adjustment, the emotional and
mental condition of the offender, the prospects for the
1 (1976) 4 SCC 190
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| rehabilitation of the offender, the possibility of return | |
|---|---|
| of the offender to a normal life in the community, the | |
| possibility of treatment or training of the offender, the | |
| possibility that the sentence may serve as a deterrent | |
| to crime by the offender or by others and the current | |
| community need, if any, for such a deterrent in | |
| respect to the particular type of offence. These are | |
| factors which have to be taken into account by the | |
| court in deciding upon the appropriate sentence….” |
7. The same view has been consistently followed in various
judgments of this Court. The recent one being, Gopal Singh
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vs. No doubt, that this Court in the
State of Uttarakhand .
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case of Union of India and others vs. Sadha Singh has
held, that Section 433A of the Code of Criminal Procedure,
1973 (“Cr.P.C.” for short) would also be applicable to a case
tried for offence under Section 69 of the Army Act, 1950 and
a person who has been imposed with a life sentence cannot
be released unless he has actually served 14 years’ of
imprisonment, without taking into consideration the
remissions earned by him in jail. In other words, if a person
is convicted for life, unless he has actually served 14 years’
sentence, he will not be entitled to be considered for release
by giving him benefit of remissions earned by him.
2 (2013) 7 SCC 545
3 (1999) 8 SCC 375
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8. Taking into consideration the various factors, that are
taken into consideration by this Court in
Santa Singh
(supra), we find, that the case of the present appellant
deserves to be considered favourably.
9. Undisputedly, the appellant was posted in Kashmir
area, at a time when the State was undergoing the threat of
terrorism at its peak. The appellant, after the incident,
immediately came out of the tent, surrendered himself, and
gave an explanation that he had fired the rifle under a
delusion that there was a terrorist attack. The conduct and
behaviour of the appellant in the jail, as could be seen from
the Certificate issued by the Superintendent, District Jail,
Dehradun, has been excellent. The appellant has actually
served the sentence of 16 years and 6 months as on
6.1.2020. If the benefit of remission is given to him, the
period would come to 20 years and 5 months. As such, he
has served the sentence for a period of more than 14 years
and as such, the bar of Section 433A Cr.P.C. would also not
be applicable.
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10. In the peculiar facts and circumstances of the case, we
are of the view, that the sentence already served by the
appellant is much more than proportionate to the offence
proved against him.
11. In that view of the matter, while dismissing the appeal
we direct that the appellant be forthwith released from
custody.
…....................CJI.
[S.A. BOBDE]
.....................J.
[B.R. GAVAI]
......................J.
[SURYA KANT]
NEW DELHI;
MARCH 18, 2020